Prosecutors avoiding judge they say is biased

Judge Thomas Goethals listens to arguments during a motion hearing in the trial of Scott Dekraai on March 18, 2014, in Santa Ana. POOL GETTY IMAGES

Some Orange County prosecutors are refusing to try cases in front of a veteran judge at the same time he’s hearing evidence about allegations of prosecutor misconduct.

Though Superior Court Judge Thomas Goethals hasn’t ruled on the allegations, he has allowed extensive testimony and ordered prosecutors to turn over huge amounts of new evidence. On the witness stand under questioning by the defense, prosecutors have testified they didn’t turn over some evidence to defendants in several murder cases.

Recently, other deputy district attorneys have filed motions to disqualify Goethals from hearing unrelated cases, including murders. The prosecutors have said under penalty of perjury that the judge is “prejudiced” against the prosecution and cannot provide a fair trial.

That is keeping high-profile cases out of Goethals’ courtroom, including the trial of a man accused of being a serial killer and what the District Attorney’s Office called the largest mortgage-fraud prosecution in national history. It’s unclear how many times prosecutors have filed the motions. District Attorney’s Office Chief of Staff Susan Kang Schroeder said the office does not track them, but the Register has reviewed three recent ones.

Lawyers on both sides said defense attorneys file motions to disqualify judges more often than prosecutors. Adam Winkler, a UCLA law professor, said it’s unusual for prosecutors to openly accuse a judge of prejudice.

“Prosecutors have to go back and appear before judges over and over again,” he said. “It’s often a mistake to make that judge your enemy. … Prosecutors wouldn’t file such a motion unless they were truly at wit’s end with the judge. They must feel this judge is profoundly unfair. You wouldn’t do this just because you don’t like a judge, and you wouldn’t do this just because a judge sometimes rules against you.”

In an email in response to questions, Goethals said: “I am ethically prohibited from discussing that subject.”

Schroeder said she wasn’t aware of supervisors directing prosecutors to file the motions against Goethals.

“The way that works in our office is that each individual deputy district attorney or prosecutor has the discretion to do what’s in the best interest of their cases,” she said.

Winkler and Kate Corrigan, an Orange County defense attorney and former prosecutor, said it’s unlikely rank-and-file prosecutors would make such accusations without talking to their supervisors. The recent filings aren’t the first prosecutors have lodged against Goethals, and other judges have been the target of them at times. But Winkler said a pattern of repeated claims of bias against one judge in a short time is unusual.

Goethals’ hearing in the case of Seal Beach salon shooter Scott Dekraai, which has continued off and on since March, has included testimony from prosecutors, sheriff’s deputies and police officers that some evidence about jailhouse informants was not turned over. Schroeder dismissed as “rumor” any link between the Dekraai hearing and the allegations of prejudice against Goethals in other cases.

Corrigan believes that prosecutors are accusing Goethals of prejudice for doing his job. She said prosecutors are upset with the judge “because he’s allowing the (Dekraai) hearing to go forward, and he’s allowing the public to see – he’s letting the truth come out. And the truth is ugly in this case.”

Goethals also has made rulings critical of prosecutors in other cases, including in March, when he kicked Deputy District Attorney Erik Petersen off a gang assault case. Goethals ruled Petersen had intentionally withheld evidence from the defense, which Petersen denied.

Under state law, an attorney can refuse to appear in front of a judge by filing a motion to disqualify, though only once per side per case. They’re not required to give a reason or prove any prejudice, and by law, the case must be reassigned.

All the filings reviewed by the Register have happened in the courtroom of Gregg Prickett, the supervising judge who assigns felony trials to other courtrooms. In two murder cases, when Prickett announced the cases were assigned to Goethals’ courtroom, prosecutors immediately filed handwritten motions to disqualify Goethals. In the mortgage-fraud case, the prosecutor made the motion in court six days later.

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